Mcmurray v. Commonwealth

• Decision Date: 17 September 1925
• Citation: 129 S.E. 252
• Parties: McMURRAY et al. v. COMMONWEALTH.
• Court: Virginia Supreme Court

129 S.E. 252

McMURRAY et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept 17, 1925.

Error to Circuit Court, Scott County.

Dennis McMurray and Martha McMurray were convicted of murder, and they bring error. Affirmed.

W. S. Cox and Will H. Nickels, both of Gate City, for plaintiffs in error.

John R. Saunders, Atty. Gen., and Leon M. Bazile, and Lewis H. Machen, Asst. Attys. Gen., for the Commonwealth.

BURKS, J. The plaintiffs in error, defendants in the trial court, were jointly indicted, tried, and convicted for the murder of W. C. McMurray, and sentenced to the penitentiary for 14 years.

Dennis McMurray, one of the defendants, was the son of Martha McMurray, the other defendant, and the nephew of W. C. McMurray, the deceased.

It is assigned as error that the trial court refused to set aside the verdict of the jury as contrary to the law and the evidence. The evidence is as conflicting as it could well be. Many of the witnesses were hostile to each other, or towards defendants and their families, or the deceased and his family, and the immediate parties to the homicide were not on good terms with each other; but the evidence for the commonwealth was abundant to support the verdict of the jury, which was for murder of the second degree.

The immediate cause of the difficulty was the attempt of the defendants to inclose a small piece of land claimed by both the deceased and the defendants. The testimony in chief of I. F. Ramey, a witness for the commonwealth, was as follows:

"I live on Timbertree Branch in Scott county, Va. I knew W. C. McMurray in his lifetime, and am acquainted with the defendants. W. C. McMurray was killed by the defendants in Scott county, Va., on May 18, 1923, about 2 or 2:30 o'clock in the afternoon. I was working—planting corn—about 123 steps from the parties. I afterwards stepped it. I was on the hill above them. My son-in-law, Willis McMurray, and my daughter were with me. The first thing that I heard or attracted my attention was I heard W. C. McMurray say to the defendants, 'Get off of my land, and get off now, ' and I looked and saw W. C. McMurray crossing the creek and when he got across the creek he pulled up the second post from the corner that Martha and Dennis McMurray had driven up and threw it down, and he then went to the corner post and pulled it up or was trying to pull it up and I saw Martha McMurray go and get the ax which was about four panels from where W. C. McMurray was. She got the ax and Dennis McMurray got a club or a large chestnut pole, and they both rushed on W. C. McMurray who had a post in his hands which he was waving around towards Martha McMurray like he was trying to keep her off, and he backed off up the hill and Martha and Dennis were following him to a bluff or steep place where there were bushes and briars growing and he could not get any further. W. C. McMurray then pushed or shoved Martha McMurray down and rushed out by them down into the little bottom and Dennis and Martha followed him. Dennis had the club and Martha the ax. W. C. McMurray reached the ax out of Martha's hand andwas motioning with the ax as if he was trying to ward off Dennis' club. I got on the ground at that time and got in between Dennis and W. C. McMurray and told them that that was no way to settle business, and I put my hand on W. C. McMurray's shoulder and he pitched the ax off up the hill behind him. I took my eye off of Martha McMurray and was watching Dennis who had the stick raised, and about that time I felt W. C. McMurray's body jar and I looked around and Martha McMurray was behind him with the ax drawn back in a striking position. I grabbed the ax out of her hands and threw it up the hill. Just as I felt the jar on W. O. McMurray's body he began to sink down, and when he had gotten nearly to the ground Dennis struck him across the side of the head with a club, and raised the club to make a second lick and I struck Dennis McMurray across the head with a hoe handle which I had in my hands, and which I had carried with me from where I was planting corn. I had the hoe in my hand when I saw the difficulty begin and I carried it I suppose unconsciously with me. (Here the ax and club were introduced to the jury.) Martha McMurray was standing on a little higher ground than W. C. McMurray was when he was struck. When I struck Dennis McMurray with a hoe I then went to my house which was a short distance away. At the time of the difficulty, W. C. McMurray, Dennis McMurray, Loe Cross were the only ones that were present. My wife arrived on the ground some time during the difficulty. After W. O. McMurray was struck, and just about the time I was leaving for my house, I saw Lola McMurray wife of Dennis McMurray, coming from the direction that Dennis and Martha McMurray lived at that time. When I returned to the scene of the difficulty in a few minutes, Stella McMurray, daughter of deceased, was there at or near the body of her father. I passed her just opposite my house as I went to the house. The wounds were on the left side of the head, one of which was near the top of the head, but to the left side, and the back part of the upper wound was the deepest and the skin was cut or broken about 2 or 3 inches on the upper wound, and while we were washing the deceased that night I put my fingers in the back part of the upper wound up to the first joint. The other wound was just above the ear and was about parallel with the upper wound, or nearly so. The wound above the ear made a soft place, the skin was not broken. I noticed some eyebrows on a knot on the stick that Dennis hit W. C. McMurray with. The ax was about 6 or 8 feet from where W. C. McMurray fell. Dennis McMurray and his mother, Martha McMurray, and the boy by the name of Cross had worked on this land in a small bottom near the creek putting up fence post that morning till about 11 o'clock and left and returned after dinner and had been working there some little time before W. C. McMurray came. I saw a man's coat and a sack lying on the west side of the branch near the branch. I did not see any one place them there, but it looked like W. C. McMurray's coat. After the difficulty was over, Dennis and Martha McMurray and the Cross boy went down the road towards where Mrs. McMurray and Dennis lived, and I did not see them any more that day. Martha McMurray, an old devil, and said, * * * 'We will kill you, son of a bitch.' I searched or assisted in searching W. C. McMurray after he was killed. We found a pock-etbook with $1 of money in it and a small piece of chewing tobacco in his pocket."

There was much other testimony for the commonwealth incriminating the defendants, some of which is hereinafter referred to, but the residue of which need not be recited:

The rulings of the trial court on the admissibility of evidence were made the grounds of several exceptions, and are assigned as error.

Maggie Bright, a witness for the commonwealth, was asked if she had heard the defendant, Martha McMurray, make any threats against W. C. McMurray, the deceased, and she answered, over the objection of the defendants:

"On the day before the killing of W. C. McMurray, I went to the mail box with Martha, and she said they were going to fence that lot up there, but she expected to have trouble. She never mentioned any one's name. She said she was going to build the fence to keep her cow in."

The objection to this testimony was because the name of the deceased was not mentioned, and there was no reference to him. It is said there was nothing to indicate what was meant by the expression, "looked for trouble."

Reliance is placed on Mullins v. Commonwealth, 113 Va. 787, 75 S. E. 193, to support the objection. In that case it is said:

"A witness named Puckett was permitted to testify, over the prisoner's objection, that she was at the home of the accused some two months before the homicide, when the deceased came there to get a meal, and that about a half an hour after the deceased had left she heard part of a conversation between the accused and his wife, in which the latter said, 'He would be the hardest witness against you, ' and the accused replied, 'Never mind, he would not be at court.' "

No names were mentioned, and the witness did not know to whom the accused and his wife were referring. It was a case of circumstantial evidence, and the commonwealth was endeavoring to connect the prisoner with the offense by proving a motive on the part of the...